answer of defendants city of carmel 5 14 cv 03084

STRADLING YOCCA CARLSON & RAUTH

LAW Y E RS NEW PO RT BE A CH

SERVICE LIST DOCSOC/1671285v3/102910-0006

1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28

JEFFREY A. DINKIN, SBN 111422 [email protected] ALLISON E. BURNS, SBN 198231 [email protected] DAVID C. PALMER, SBN 251609 [email protected] STRADLING YOCCA CARLSON & RAUTH A Professional Corporation 800 Anacapa Street, Suite A Santa Barbara, California 93101 Telephone: (805) 730-6800 Facsimile: (805) 730-6801 Attorneys for Defendants City of Carmel-by-the Sea; Jason Stilwell; Susan Paul

Exempt from filing fee Government Code § 6103

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

STEVEN MCINCHAK

Petitioner/Plaintiff,

v.

CITY OF CARMEL-BY-THE-SEA, JASON STILWELL, CITY ADMINISTRATOR OF THE CITY OF CARMEL-BY-THE-SEA, SUSAN PAUL, ADMINISTRATIVE SERVICES DIRECTOR OF THE CITY OF CARMEL-BY-THE-SEA; and DOES 1 through 50, inclusive,

Defendants.

CASE NO. 5:14-cv-03084 Monterey County Superior Court

Case No. M128062

ANSWER OF DEFENDANTS CITY OF CARMEL-BY-THE-SEA, JASON STILWELL AND SUSAN PAUL

Action Filed: June 4, 2014 Discovery Cutoff: Not Set Trial Date: Not Set

Case5:14-cv-03084-HRL Document4 Filed07/08/14 Page1 of 24


1 TO PETITIONER/PLAINTIFF AND ATTORNEYS OF RECORD:

2 Respondent/Defendants the City of Carmel-By-The-Sea ("City"), Jason

3 Stilwell ("Mr. Stilwell"), City Administrator of the City of Carmel-by-the-Sea, and

4 Susan Paul ("Ms. Paul"), Administrative Services Director of the 1 City of Carmel-

5 by-the-Sea (collectively, "Respondents") for themselves and for no other

6 defendant, hereby answer the Petition/Complaint filed in the above-captioned

7 action on June 4, 2014 ("Complaint") by Petitioner/Plaintiff Steven Mclnchak

8 ("Petitioner") as follows:

9 PRELIMINARY STATEMENT

10 In response to the introductory paragraph of the Complaint, Respondents

11 admit that Petitioner has been employed by the City since 1997 as its Information

12 Systems Network Manager, responsible for managing and supervising the City's

13 entire computer system. Respondents further admit that on June 5, 2013 the City

14 of Carmel-by-the Sea unilaterally placed Petitioner on paid administrative leave

15 from his position as Information Systems Network Manager without notice or

16 hearing because no such notice or hearing was required. Respondents are not able

17 to admit or deny whether there was cause for placing Petitioner on paid

18 administrative as the term "without cause" as used in the context of the Complaint

19 is uncertain and indefinite, and while cause was not required to place Petitioner on

20 paid administrative leave, there was cause for doing so. Respondents further

21 admit that the City has kept Petitioner on paid administrative leave, preventing

22 him from performing his job duties or returning to work since June 6, 2013, a

23 period of nearly 12 months at the time the Complaint was filed. Respondents

24 further respond that the balance of the allegations set forth in the introductory

25 paragraph constitute legal argument or legal conclusions and Respondents are not

26 required to admit or deny the same. To the extent the balance of the introductory

27 paragraph contains factual allegations, the Respondents deny the same.

28 STRADLING YOCCA

CARLSON & RAUTH -2-

LAWYERS

NEWPORT BE.\CII

DOCSOC/1671285v3/1 02910-0006

ANSWER


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA

CARLSON & RAUTH L.-\WYERS

NEWPORT BE.\CH

Respondents further deny the implication that any of actions referred to in the

introductory paragraph violated any statute or other legal right held by Petitioner.

PARTIES

1. Answering Paragraph 1 of the Complaint, Respondents admit all

allegations therein.







5. Answering Paragraph 5 of the Complaint, Respondents are without

sufficient knowledge or information to form a belief as to the truth of the

allegations contained therein, and on that basis deny each and every such

allegation.

COMMON FACTS

6. Answering Paragraph 6 of the Complaint, Respondents deny that

Petitioner "reported directly to the City Administrator until 2013 when he was

directed to report instead to the administrative Services Director;" Respondents

admit the balance of the allegations contained in Paragraph 6.

-3-

ANSWER DOCSOC/1 671285v3/l 02910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA

CARLSON & RAUTH LAWYERS

NEWPORT BEACH

7. Answering Paragraph 7 of the Complaint, Respondents deny that

Petitioner was "required to be accessible to the City, its Administrators, its elected

officials and employees twenty-four hours a day, seven days a week to solve

problems or answer questions about the City's Computer system;" Respondents

admit the balance of the allegations contained in Paragraph 7.

8. Answering Paragraph 8 of the Complaint, Respondents deny all

allegations contained therein.

9. Answering Paragraph 9 of the Complaint, Respondents deny that: (i)

Petitioner "is a permanent, long-term employee of the City of Carmel;" (ii)

Petitioner "accrued a property interest in his employment as a public employee

under the Constitution of the State of California, including the right to retain his

employment in the absence of just cause for termination;" (iii) Petitioner "was

informed that he was required to sign that Agreement as a condition of remaining

employed by the City of Carmel"; (iv) Petitioner "received no ... consideration or

other benefit in connection with the Employment Agreement;" (v) Petitioner "was

compelled to sign ... with no notice or intent to waive his vested rights and under

threat that if he did not sign the Employment Agreement his employment would be

immediately terminated without cause." Respondents admit the balance of the

allegations contained in Paragraph 9, except those that constitute legal argument or

legal conclusions which Respondents are not required to admit or deny the same .

10. Answering Paragraph 10 of the Complaint, Respondents admit that on

June 5, 2013: "agents of the City of Carmel appeared at Petitioner/Plaintiffs home

together with the Chief of Police and three law enforcement officers from the City

of Carmel and the Monterey County Sheriffs Department who served upon

Petitioner/Plaintiff a search wanant and proceeded to search his residence." -4-

ANSWER DOCSOC/1671285v3/10291 0-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA

CARLSON & RAUTH L.\\\'YERS

NEWPORT BEACH

Respondent admits " ... the City of Cannel took possession of Petitioner/Plaintiffs

home computer ... [and] ... [ c ]ity laptop computer and multiple thumb drives and

disks, including all back-up disks ... None of the property taken on June 5, 2013

has been returned to Petitioner/Plaintiff." Respondents deny each and every other

allegation contained in Paragraph 10.

11. Answering Paragraph 11 of the Complaint, the Respondents admit that

(i) Petitioner's home computer was never returned, and (ii) Karen Mclnchak is not

now, and never has been, an employee of the City of Carmel. Respondents are

without sufficient knowledge or information to form a belief as to the truth of the

remaining allegations of Paragraph 11 and on that basis deny each and every

remaining allegation.

12. Answering Paragraph 12 of the Complaint, Respondents deny the

allegation that "at the same time on June 5, 2013 agents of the City of Carmel

including Respondent/Defendant Susan Paul notified Petitioner/Plaintiff that he

was placed on administrative leave pending investigation of criminal charges

against him." Respondents admit that no criminal or other charges have ever been

filed against Petitioner and that the Cannel Police Department has not requested

the filing of any criminal charges against Petitioner. Respondents are without

sufficient knowledge or information to form a belief as to the truth of the allegation

that "nor any other law enforcement agency has requested the filing of any

criminal charges against Petitioner/Plaintiff, Steven Mclnchak," and on that basis

deny the foregoing allegation.

13. Answering Paragraph 13 of the Complaint, Respondents admit that to

date, Petitioner has not received notice of charges from the City of CarmeL

Respondents further admit (i) that Petitioner has never received notice of charges -5-

ANSWER DOCSOC/1671285v3/102910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA

CARLSON & RAUTH LAWY~RS

NEWPORT BEACil

from the City of Carmel; (ii) that Petitioner was directed to appear at an

investigative interview, (iii) that not appearing at said investigative interview

would be insubordination, (iv) that an attorney engaged by the City was present

with Ms. Paul at the investigative interview. Respondents admit that Petitioner did

not have an opportunity to review, respond to or rebut charges because the

interview was investigatory and there were no charges yet alleged to which

Petitioner could respond. Respondents deny that Petitioner was not given the

oppmiunity to respond to the questions about his activity. Petitioner's allegation

that "the allegations against Petitioner by the City of Carmel are false" is not

sufficiently definite to allow Respondents to form a belief as to the truth of the

foregoing allegation and on that basis Respondents deny the same. Respondents

are without sufficient knowledge or information to form a belief as to the truth of

the following allegations, and on that basis Respondents deny the same: (i)

Petitioner "had no knowledge or notice of any allegations against him by the City

of Carmel" prior to the search of his home and seizure of his property; and (ii) that

any purported "allegations of wrongdoing made by the City of Carmel against

[Petitioner] . . . have been widely published and republished throughout the

community." Respondents deny each and every other allegation contained in

Paragraph 13.

14. Answering Paragraph 14, the Respondents respond that the following

allegation constitutes legal argument or legal conclusion and Respondents are not

required to admit or deny the same: "such false and defamatory allegations,

including allegations of criminal conduct, irreparably damaged

Petitioner/Plaintiffs reputation in his profession, his employment and his

community, violated his privacy, impaired his contract of employment, and

violated his liberty interest in his employment, all in violation of his right to due

process of law under the Constitution of the State of California, and in violation of -6-

ANSWER DOCSOC/1671285v3/1 02910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA

CARLSON & RAUTH L.I.WYERS

NEWPORT B[ACH

California law." Respondents deny each and every other allegation contained in

Paragraph 14.

15.Answering Paragraph 15 of the Complaint, Respondents admit that from

the time Petitioner was placed on paid administrative leave on June 5, 2013 to the

present time Petitioner has been prevented from performing his job duties,

retrieving the personal property seized by the Police pursuant to the search warrant,

or accessing his home and office computers. Respondents further respond that the

remaining allegations in Paragraph 15 constitute legal argument or legal

conclusion and Respondents are not required to admit or deny the same.

Notwithstanding, to the extent the remaining allegations constitute factual

averments, Respondents deny the same.

16. Answering Paragraph 16 of the Complaint, Respondents admits that

Petitioner/Plaintiff is 62 years of age. Respondents admit that employees of the

City of Carmel by-the-Sea over the age of 40 years old have been terminated since

March 1, 2013. Respondents deny that " ... at least seven long-term employees over

the age of 40 years who have been terminated, placed on involuntary leave of

absence pending an investigation of allegations of misconduct, placed under

disciplinary investigation by the City of Carmel or forced to resign since on or

about March 1, 2013." Respondents deny that "the City Administrator and other

agents of the City of Carmel have instituted a pattern and practice of discrimination

based on age causing a disparate impact on older employees which is continuing in

violation of California law." Respondents deny that Petitioner/Plaintiff has been

"subjected to disparate treatment because of his age." Respondents are without

sufficient knowledge or information to form a belief as to the truth of the allegation

that Petitioner "has never been convicted of any crime of moral turpitude", and on

that basis, deny the allegation. With regard to Petitioner's allegations that "a -7-

ANSWER DOCSOC/1671285v3/l 02910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA


NEWPORT BEACH

female employee who is more than twenty years younger than Petitioner was

convicted of welfare fraud during her employment with the City as its Finance

Specialist without suffering any discipline, discharge, involuntary leave of absence

or investigation of wrongdoing," such allegation is inflammatory and inelevant as

well as factually incorrect; Respondents deny the same. Respondents admit that in

May 16, 2014 Petitioner filed a Complaint of Discrimination with the California

Department of Fair Employment and Housing against the City of Carmel-by-the

Sea and certain individuals. Respondents further respond that the remaining

allegations of Paragraph 16 constitute legal argument or legal conclusions and

Respondents are not required to admit or deny the same. Notwithstanding, to the

extent the remaining allegations constitute factual averments, Respondents deny

the same.

17.Answering Paragraph 17 of the Complaint, Respondents admit that on or

about December 4, 2013 Petitioner/Plaintiff submitted a Notice of Government

Claim to the City Clerk of the City of Carmel-by-the-Sea. Respondents admit that

on January 9, 2014 the City rejected Petitioner's Government Claim. Respondents

further respond that the remaining allegations of Paragraph 17 constitute legal

argument or legal conclusions and Respondents are not required to admit or deny

the same. Notwithstanding, to the extent the remaining allegations constitute

factual averments, Respondents deny the same.

18.Answering Paragraph 18 of the Complaint, Respondents respond that the

allegations set fmih in Paragraph 18 constitute legal argument or legal conclusion

and Respondents are not required to admit or deny the same. Notwithstanding, to

the extent Paragraph 18 contains factual allegations, Respondents deny the same.

-8-

ANSWER DOC SOCII 671285v3/10291 0-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA CARLSON & RAUTH

L>,.WYERS

NEWPORT BE.\CII

FIRST CAUSE OF ACTION Petition for Writ of Mandamus:

Performance of Ministerial Duty (CCP 1085) (Against All Respondents/Defendants Official Capacities)

19. Answering Paragraph 19 of the Complaint, Respondents incorporate by

reference each and every response in paragraphs 1 through 18 as though fully set

forth herein.


allegations set forth in Paragraph 20 constitute legal argument or legal conclusion


the extent Paragraph 20 contains factual allegations, Respondents are without

sufficient knowledge or information to form a belief as to the truth of such

allegations and on that basis deny the same.

2l.Answering Paragraph 21 of the Complaint, Respondents respond that the




22. Answering Paragraph 22 of the Complaint, Respondents admit that on

June 5, 2013 agents of the City of Carmel placed, and now continue to maintain,

Petitioner on paid administrative leave pending an investigation that remains

ongoing. Respondents deny that Respondents are "without good cause, without

investigation and without any evidence of grounds to believe that he is guilty of

conduct which warrants disciplinary action." Respondents further respond that the

remaining allegations of Paragraph 22 constitute legal argument or legal


-9-

ANSWER DOCSOC/1671285v3/l 02910-0006


1 Notwithstanding, to the extent the remammg allegations constitute factual

2 averments, Respondents deny the same.

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA CARLSON & RAUTH

LAWYERS NEWPORT BE.\Cll

23. Answering Paragraph 23 of the Complaint, Respondents respond that

each and every allegation of Paragraph 23 constitutes legal argument or legal


Notwithstanding, to the extent Paragraph 23 contains factual allegations,

Respondents deny the same.

24.Answering Paragraph 24 of the Complaint, Respondents admit that

"Respondents/Defendants have refused, and continued to refuse, to permit him to

perform his duties as Information Systems Network Manager for the City of

Carmel." Respondents deny that "Respondents/Defendants have refused, and

continued to refuse, to reinstate Petitioner/Plaintiff' as Petitioner remains

employed by the City. Respondents further respond that the remaining allegations

of Paragraph 24 constitute legal argument or legal conclusion and Respondents are

not required to admit or deny the same. Notwithstanding, to the extent the

remaining allegations constitute factual averments, Respondents deny the same.


allegations set forth therein constitute legal argument or legal conclusion and

Respondents are not required to admit or deny the same. To the extent Paragraph

25 contains factual allegations, the Respondents deny the same.


allegations set fmih in Paragraph 26 constitute legal argument or legal conclusion


the extent Paragraph 26 contains factual allegations, Respondents deny the same. -10-

ANSWER DOCSOC/1671285v3/l 02910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA


NEWPORT BEACH

SECOND CAUSE OF ACTION For Writ Mandate: Abuse Discretion

(Against AU Respondents/Defendants ........ , .. 44 .. Capacities)



forth herein.





THIRD CAUSE OF ACTION Breach of Written Contract of Employment

(Against Respondent/Defendant Employer Only)



forth herein.

30.Answering Paragraph 30 of the Complaint, Respondents respond that

they are without sufficient knowledge or information to form a belief as to the

truth of the allegation that Petitioner "has not engaged in any such conduct, nor has

he been charged or convicted of any crime .... " Respondents admit that Petitioner

has not been charged or convicted of any crime. As for the allegation that

Petitioner "has not engaged in any such conduct," Respondents respond that they

are without sufficient knowledge or information to form a belief as to the truth of

the allegation as Petitioner's conduct remains under investigation as of the date of

-11-

ANSWER DOCSOC/1671285v3/l 02910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA


NEWI'ORT BEACH

this Answer. Respondents deny each and every other allegation contained m

Paragraph 30.

31. Answering Paragraph 31 of the Complaint, Respondents deny each and

every allegation contained therein.





FOURTH CAUSE OF ACTION Defamation

(Against All Respondents/Defendants)

33.Answering Paragraph 33 of the Complaint, Respondents incorporate by


forth herein.

34.Answering Paragraph 34 of the Complaint, Respondents respond that

they are without sufficient knowledge or information to form a belief as to the truth

of the allegation that Respondents caused "excessive and unsolicited internal and

external publications of defamation of and concerning Petitioner/Plaintiff to third

persons and to the community" and on that basis deny the same. Respondents

deny each and every remaining allegation contained in Paragraph 34.

35.Answering Paragraph 35 of the Complaint, the allegations are uncertain

and general, and on that basis Respondents are without sufficient knowledge or

-12-

ANSWER DOCSOC/1 671285v3/l 02910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA

CARLSON & RAUTH L .. \WYERS

NEWPORT BEACH

information to form a belief as to the truth of each and every allegation contained

therein, and on that basis deny the same.






allegations set forth in Paragraph 3 7 constitute legal argument or legal conclusion


the extent Paragraph 3 7 contains factual allegations, Respondents respond that the

allegations are uncertain and general, and on that basis they are without sufficient

knowledge or information to form a belief as to the truth of the allegations, and on

that basis deny the same.




the extent Paragraph 3 8 contains factual allegations, Respondents respond that the



that basis deny each and every allegation therein.



information to fonn a belief as to the truth of each and every allegation contained

therein, and on that basis deny the same. -13-

ANSWER DOCSOC/1671285v3/l0291 0-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA

CARLSON & RAUTH L\\VYERS

NEWI'ORT BEACH

40. Answering Paragraph 40 of the Complaint, the allegations are uncertain




41. Answering Paragraph 41 of the Complaint, Respondents respond that the



the extent Paragraph 41 contains factual allegations, Respondents respond that the







the extent Paragraph 42 contains factual allegations, Respondents respond that the







the extent Paragraph 43 contains factual allegations, Respondents deny each and

every allegation therein.

-14-

ANSWER DOCSOC/!671285v3!1 02910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA


NEWPORT BE.\CH

44. Answering Paragraph of the Complaint, Respondents respond that the





FIFTH CAUSE OF ACTION Intentional Infliction of Emotional Distress

(Against All Respondents/Defendants)



forth herein.

46. Answering Paragraph 46 of the Complaint, Respondents admit that on or

about June 5, 2013 agents of the City, including Ms. Paul, entered Petitioner's

home pursuant to a search warrant. Respondents further respond that the

remaining allegations set forth in Paragraph 46 constitute legal argument or legal


Notwithstanding, to the extent the remaining allegations constitute factual

averments, Respondents deny the same.

4 7. Answering paragraph 4 7 of the Complaint, Respondents deny each and





the extent Paragraph 48 contains factual allegations, Respondents are without

-15-

ANSWER DOCSOC/167 I 285v3/1 029 I 0-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA

CARLSON & RAUTH LA WYERS

NEWPORT BE.\CH

sufficient knowledge or information to form a belief as to the truth of the

allegations and on that basis deny each and every allegation therein.

SIXTH CAUSE OF ACTION Negligent Infliction of Emotional Distress

(Against AU Respondents/Defendants)



forth herein.











SEVENTH CAUSE OF ACTION Declaratory Relief

(Against All Respondents/Defendants in their Official Capacities)



forth herein. -16-

ANSWER DOCSOC/1671285v3/1 02910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA


NEWPORT 8E.\CII











55. Answering Paragraph 55 of the Complaint, Respondents responds that

the allegations set forth in Paragraph 55 constitute legal argument or legal


Notwithstanding, to the extent Paragraph 55 contains factual allegations,

Respondents deny each and every allegation therein.

PRAYER FOR RELIEF

Respondents deny each and every allegation and request for relief, including all

subparts, set forth in Petitioner's "PRAYER FOR RELIEF."

-17-

ANSWER DOCSOC/1671285v3/1 02910-0006


1 AFFIRMATIVE DEFENSES

2 FIRST AFFIRMATIVE DEFENSE

3 State a

4

5 As a first and separate affirmative defense, Respondents are informed and

6 believe and on that basis allege that the Complaint and all of the purported claims

7 therein are barred in whole or in part, by the failure to state a claim upon which

8

9 relief may be granted.

10

11 SECOND AFFIRMATIVE DEFENSE

12

13 Standing

14 As a second and separate affirmative defense, Respondents allege that

15

16 Plaintiff lacks standing to bring his Complaint and all of the purported claims

17 therein.

18 THIRD AFFIRMATIVE DEFENSE

19 Waiver

20

21 As a third and separate affirmative defense, Respondents allege that the

22 Complaint and the purported claims therein are barred, in whole or in part, by the

23 doctrine ofwaiver.

24

25

26

27

28 STRADLING YOCCA -18-CARLSON & RAUTH

LAWJ:ERS

NEWPORT BEACH ANSWER DOCSOC/1671285v3/1 02910-0006


1 FOURTH AFFIRMATIVE DEFENSE

2 Ripeness

3 As a fourth and separate affirmative defense, Respondents allege that

4

5 Plaintiffs purported claims, and each of them, are not ripe for adjudication.

6

7 FIFTH AFFIRMATIVE DEFENSE

8

9 Justification and Privilege

10 As a fifth and separate affirmative defense, Respondents allege that their

11 actions respecting the subject matters in the Complaint were undertaken in good

12

13 faith, with the absence of discriminatory and/or malicious intent to injure Plaintiff,

14 and constitute lawful, proper and justified means to further the purpose of engaging

15

16 in and continuing the City's affairs.

17

18 SIXTH AFFIRMATIVE DEFENSE

19

20 Conformance with Statutes and Regulations

21 As a sixth and separate affirmative defense, Respondents allege that to the

22 extent any of their activities as alleged in the Complaint were pursuant to state or

23

24 local law or government regulations, Plaintiffs claims must fail in that such

25 activities were authorized, appropriate or permitted and therefore cannot fonn the

26 basis of any liability. 27


LAWYERS

NEWPORT BEACH ANSWER DOCSOC/l671285v3/l 02910-0006


1 SEVENTH AFFIRMATIVE DEFENSE

2 Remedy

3 As seventh and separate affirmative defense, Respondents are infonned and

4

5 believe and on that basis alleges that the Complaint and all of the purported claims

6 therein are barred in whole or in part, by the failure to exhaust administrative

7 remedies.

8

9 EIGHTH AFFIRMATIVE DEFENSE

10 No Protectable Property Interest

11 As an eighth and separate affirmative defense, the Complaint is barred because

12

13 Respondents have not interfered with any protectable property interest alleged in

14 the Complaint.

15 NINTH AFFIRMATIVE DEFENSE

16

17 No Damages

18 As an ninth and separate affirmative defense, the Complaint Is barred

19

20 because Petitioner/Plaintiff has failed to show any cognizable damages.

21 TENTH AFFIRMATIVE DEFENSE

22 Unclean Hands

23

24 As a tenth and separate affinnative defense, the Complaint is barred by the

25 doctrine of unclean hands.

26

27


L\WYERS

NLWPORT BEACII ANSWER DOCSOC/1671 285v3/l 029 I 0-0006


1 ELEVENTH AFFIRMATIVE DEFENSE

2

3 As an eleventh and separate affirmative defense, the Complaint is barred

4

5 because the relief sought would improperly interfere with Respondents'

6 discretionary authority.

7

8

9 TWELFTH AFFIRMATIVE DEFENSE

10 Employment At-Will

11 As a twelfth and separate affirmative defense, Respondents allege that at all

12

13 times relevant hereto, Petitioner was an at-will employee of the City.

14

15 THIRTEENTH AFFIRMATIVE DEFENSE

16

17 Other Defenses Reserved

18 As a thirteenth and separate affirmative defense, Respondents allege that

19

20 Plaintiffs purported claims are barred, in whole or in part, on the basis of other

21 facts and allegations which are either not yet known or whose materiality or

22 relevance are not yet fully appreciated, and Respondents reserve the right to amend

23 this answer and to assert additional defenses.

24

25

26

27


L.\WYLRS NEWPORT BEACI! ANSWER

DOCSOC/1671285v3/l 02910-0006


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27

28 STRADLING YOCCA


NEWPORT BEACH

PRAYER FOR RELIEF

WHEREFORE, Respondents pray as follows:

1. That Plaintiff take nothing by way ofhis Complaint;

2. That this Court deny every item of relief requested in the Complaint;

3. That judgment be entered in favor of Respondents;

4. That Respondents recover attorneys' fees, as applicable;

5. That Respondents recover costs of suit incurred herein; and

6. That Respondents receive such other and fmiher relief as the Court

deems just and proper.

DATED: July 7, 2014

DOCSOC/1671 285v3/l 02910-0006

STRADLING YOCCA CARLSON & RAUTH A Profession~a! Corporation

B : stt -y+~~-y Jeffrey Kiil'krn

Allison E. Bums

Attorneys for Defendants City of Carmel-by-the Sea; Jason Stilwell; Susan Paul

-22-

ANSWER


1

2

3

4

5

6

7

8

9

10

11

12

13

14

15

16

17

18

19

20

21

22

23

24

25

26

27 '")Q

STRADLING YOCCA CARLSON & RAUTH

LAWYERS

NEWPORT BL\CII

CERTIFICATE OF SERVICE

I certify that on July 8, 2014 the foregoing document was served on all parties

or their counsel of record in the manner set forth below:

BY EMAIL: by transmitting via electronic mail the document(s) listed above to the email address( es) set forth below.

D BY FACSIMILE: by transmitting via facsimile the document(s) listed above to the facsimile number(s) set forth below. I certify that said transmission was completed without error and that a report was generated by facsimile machine (949) 725-4100 which confirms said transmission.

0 BY OVERNIGHT DELIVERY: by placing the document(s) listed above in a sealed envelope with postage thereon fully, prepaid, and delivering via overnight courier and addressed as set forth below, respectively.

~ BY MAIL: by placing the document( s) listed above in a sealed envelope with postage thereon fully prepaid, in the United States Mail in Newport Beach, California, addressed as set forth below.

0 BY PERSONAL DELIVERY: by causing personal delivery by Nationwide Legal, Inc. of the document(s) listed above to the person(s) at the address( es) set forth below

SEE ATTACHED SERVICE LIST

I am readily familiar with the firm's practice of collection and processing correspondence for mailing. Under that practice it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid in the ordinary course of business. I am aware that on motion of the party served, service is presumed invalid if postal cancellation date or postage meter date is more than one day after the date of deposit for mailing in affidavit.

I declare under penalty of perjury under the laws of the State of California that the above is true and correct.

Executed on July 8, 2014, at Newport Beach, California.

CERTIFICATE OF SERVICE DOCSOC/167047lvlll02910-0006

answer of defendants city of carmel 5 14 cv 03084

Documents